Criminal Law

Criminal Law

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – The 4th Amendment to the United States Constitution

“No person…shall… be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be witness against himself; nor be deprived of life, liberty, or property, without due process of law …”– Excerpts from the 5th Amendment to the United States Constitution

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in, and to have the Assistance of Counsel for his defense.”– The 6th Amendment of the United States Constitution

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”– The 8th Amendment to the United States Constitution

These simple and clear mandates from our founding fathers have proven to be anything but simplistic and have created much debate and controversy over the past two centuries. Each of these mandates have their counterparts in Maryland law as well, specifically the Maryland Declaration of Rights, Articles 20-26. Criminal law is always changing. Justice is what a judge or jury says it is. The mandates of the constitution (state or federal) often depend on the judges who sit on the various benches. Supreme and Appellate Court judges are often called upon to decide what the constitution means when applied to the facts of a particular case. Throughout history, battles have raged between strict constitutional constructionists and liberal constitutional constructionists. It is why presidential appointments to the Supreme Court and Federal Court benches are so contentious. Despite their sincerest of intentions, judges are human beings and often make rulings that are consistent with their own beliefs.

It is often said that, “A good lawyer knows the law and a great lawyer knows the judge.” In criminal law, this is particularly true because a judge has a great deal of power over a person convicted of a crime. It is therefore up to the lawyer to know a particular judge’s propensities.

Brief Synopsis of How a Criminal Case Generally Proceeds in Maryland

Step One: A case is brought by the state of Maryland when it is alleged that a person has committed a crime. This typically occurs after an application for statement of charges is filed by a law enforcement officer or another citizen. The alleged wrongdoer is called a defendant. The state of Maryland becomes the complainant. The state has the burden of proving beyond a reasonable doubt that the defendant is guilty of the charges. The defendant does not have to prove that he/she is innocent.

Step Two: The defendant is either arrested on an arrest warrant or is served with a criminal summons by a law enforcement officer. If the defendant is arrested, he or she may be required to appear before a judge or a commissioner on the issue of bail. The defendant is provided various documents such as the application for statement of charges, the statement of charges, any warrants and the discovery report.

If you are arrested and have to appear for a bail review hearing, hire an attorney immediately to appear on your behalf. Many defendants sit in jail longer than they have to or receive higher bails because they did not hire an attorney to represent them at the bail review. Also – and this is very important – if you are in jail, do not discuss the facts of your case with other inmates or while speaking on the phone. Anything you say can be used against you, and the state’s attorney’s office is recording and listening to your phone calls. Wait until your attorney comes to see you before discussing the facts of your case.

Step Three: Hire an attorney immediately or make application to the public defender’s office. A public defender will represent you at little or no cost. A private attorney, however, will charge you a fee. Fees vary from lawyer to lawyer and from case to case. Most people who use the public defender’s office do so because they cannot afford a private attorney. Perhaps the biggest reason for hiring a private attorney is that the public defender’s office is very busy. Their budgets have been cut, and their resources are severely limited. Public defenders usually do not have the same amount of time to devote to your case that a private attorney will have. Also, because of their heavy workloads and limited resources, public defenders are often not as accessible to you as a private attorney is. Public defenders are competent criminal attorneys, but they should be consulted only when you absolutely cannot afford to pay a private attorney.

Step Four: Discovery. The legal process of “discovery” is the process whereby your attorney files various motions compelling the state’s attorney’s office to disclose all of the evidence the state intends to use against you at trial. Photographs, video tapes, audio tapes, witness statements, fingerprints, and other forensic information must be provided to your attorney. Unlike television and the movies, there are usually no surprises at trial because of the discovery process. Similarly, your case is not likely to be the next CSI episode. Much of the technology that you see on CSI-type shows does not exist.

Step Five: Once discovery is completed, you and your attorney will discuss what evidence the state has against you. You and your attorney then decide if your case should go to trial on the merits or be resolved through plea bargaining. Most cases do not go to trial. If you and your attorney determine that your chances of an acquittal (being found not guilty) are not good, your attorney will then initiate plea discussions with the state’s attorney (i.e. the prosecutor). Your attorney might even request a pretrial conference with the presiding judge and prosecutor to argue the facts and law applicable to your case. In a pretrial conference, your attorney can solicit the judge’s opinions as to the merits of your case and his/her feelings with respect to sentencing. At the pretrial conference, your attorney will disclose to the judge personal information about you such as your character, criminal background, and family history. This information is called “mitigation.” It is up to your attorney to find the weaknesses in the state’s case and the strengths in your case, and ultimately present you to the judge in the most favorable light possible in order to secure the best possible disposition for you. There are many sentencing alternatives and options that an experienced attorney can suggest. That is why it is so critical to hire an attorney who is experienced and has the time to devote to your case.

Step Six: The trial or plea disposition. Usually, a defendant is placed on probation regardless of the outcome – unless, of course, he/she is found not guilty. Probation can be supervised or it can be unsupervised. The length and terms of the probation depend upon many factors, including the judge’s own propensities, the defendant’s actions, the defendant’s criminal history, and the seriousness of the charges. Ultimately, it is up to the judge to determine your sentence and probation terms, but it is up to your attorney to suggest various options to the judge. There can also be fines and special conditions of probation, such as community service, mental health counseling, anger management classes, and alcohol and drug counseling. Judges take their probation terms very seriously, particularly when a Defendant is granted probation before judgment (PBJ). When a defendant is awarded probation before judgment, the guilty verdict is stricken from their record. In other words, there is no criminal conviction. Many defendants get into trouble by violating the terms of their probation.

The six steps above summarize the process involved in handling criminal cases. These six steps are not intended to be all-inclusive or applicable to every case. Each case is different because each judge, each prosecutor, and each defendant is different. The only thing that does not change in any criminal case is that an attorney can be of great assistance to you if you have been charged with a crime or serious traffic violation such as DUI.